Police Dep't v. Padilla-Barham OATH Index No. 1356/08, mem. dec. (Jan. 8, 2008)

Petitioner is not entitled to retain custody of seized vehicle, having failed to demonstrate that respondent, the registered owner, and her daughter, who is the beneficial owner, are not innocent owners. Vehicle ordered released. ______

NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of POLICE DEPARTMENT Petitioner - against - NYDIA PADILLA-BARHAM Respondent ______

MEMORANDUM DECISION TYNIA D. RICHARD, Administrative Law Judge Petitioner, the Police Department (“Department”), brought this proceeding to determine its right to retain a vehicle seized as the alleged instrumentality of a crime pursuant to section 14- 140 of the Administrative Code. Respondent Nydia Padilla-Barham is the registered owner of the vehicle,1 which was seized from her daughter’s boyfriend. This proceeding is mandated by Krimstock v. Kelly, 99 Civ. 12041 (HB), third amended order and judgment (S.D.N.Y. Sept. 27, 2007) (“the Krimstock Order”). See generally Krimstock v. Kelly, 306 F.3d 40 (2d Cir. 2002), cert. denied sub nom. Kelly v. Krimstock, 539 U.S. 969 (2003); County of Nassau v. Canavan, 1 N.Y.3d 134, 770 N.Y.S.2d 277 (2003). The vehicle in issue is a 1999 Mercedes Benz C280, property clerk voucher No. B182872V, which was seized by the Department on December 8, 2007, in connection with the

1 State motor vehicle records indicate that Layaway Homes LLC is the titled owner of the vehicle (Pet. Ex. 6). Mrs. Padilla-Barham disputed that she was not the titled owner, stating that she believed that she had taken title from Layaway Homes, a limited liability company in which she is one of two members. She initially asked the tribunal for time in which to search her records for proof that she held title but, when the Department objected to leaving the record open for a period of time, she withdrew her request. Both parties asserted their belief that the issue of titled ownership was not significant to the outcome of the case. Thus, the Department made no objection to respondent’s standing to proceed as the respondent-owner. 2 arrest of Ricardo Appling for criminal possession of a loaded firearm, criminal possession of a quantity of marijuana, and a seat belt violation (Pet. Exs. 1 & 11). Respondent’s demand for a hearing was received by the Department on December 26, 2007, and trial was scheduled for January 3, 2008 (Pet. Ex. 8). Respondent, who is a licensed attorney, appeared on her own behalf to deny the allegations. ANALYSIS The Department seeks to retain the seized vehicle as the instrumentality of a crime pending the outcome of its civil forfeiture action. To do so, the Department bears the burden of proving three elements by a preponderance of the evidence: (i) that probable cause existed for the arrest pursuant to which the vehicle was seized; (ii) that it is likely that the Department will prevail in a civil action for forfeiture of the vehicle; and (iii) that it is necessary that the vehicle remain impounded to protect the public safety. Krimstock Order, at 3; Canavan, 1 N.Y.3d at 144-45, 770 N.Y.S.2d at 286. The due process rights at issue here require an “initial testing of the merits of the City’s case,” not “exhaustive evidentiary battles that might threaten to duplicate the eventual forfeiture hearing.” Krimstock, 306 F.3d at 69-70; see Canavan, 1 N.Y.3d at 144-45 n.3, 770 N.Y.S.2d at 286 n.3, citation omitted (hearing is intended to establish “the validity, or at least the probable validity, of the underlying claim”). The Department has not met its burden here. On December 8, 2007, Ricardo Appling was arrested for criminal possession of a weapon and criminal possession of 25 grams of marijuana, among other charges (Pet. Ex. 3). He also was cited for a seatbelt violation. According to the criminal court complaint (Pet. Ex. 3), Mr. Appling was driving the Mercedes with two male passengers when he was stopped by the arresting officer for failing to wear his seatbelt. The officer states that, while at the vehicle, he observed a quantity of marijuana on the top of the center console of the vehicle. In a search incident to the arrest for possession of the marijuana, the officer found additional quantities of marijuana inside the console and a loaded .22 caliber pistol with one cartridge in the chamber and nine cartridges in the magazine underneath the passenger seat of the vehicle. A loaded air pistol was uncovered in the same location. Petitioner submits that it had reason to stop the vehicle because of the seatbelt violation and that probable cause to arrest respondent and to search the vehicle was supplied by the 3 officer’s plain view observance of marijuana on top of the console next to where respondent sat. See People v. Pena, 209 A.D.2d 744, 746, 618 N.Y.S.2d 149, 152 (3d Dep’t 1994) (after observing contraband in plain view inside the car, police “had the right to conduct a thorough search of the vehicle for additional contraband and the fruits, instrumentalities, or evidence of the crime in question"). I agree and find the evidence sufficient to establish probable cause to stop and arrest respondent and to search the vehicle. Moreover, but for respondent’s claim that she is an innocent owner, this evidence would also establish a likelihood of success in the subsequent civil forfeiture action, by showing that the vehicle was used as an “instrumentality” of a crime. See Police Dep't v. Ferrer, OATH Index No. 977/08, mem. dec. (Nov. 14, 2007) (vehicle altered for purposes of transporting bags of cocaine was instrumentality of crime). It is the Department’s burden, however, to show that respondent is not an innocent owner. See Property Clerk, New York City Police Dep’t v. Pagano, 170 A.D.2d 30, 34-35, 573 N.Y.S.2d 658, 661 (1st Dep’t 1991). The Department failed to do so here. Respondent testified that the driver at the time of the seizure, Mr. Appling, is her daughter’s boyfriend who was residing at her home at the time of his arrest and had permission to use the vehicle. Although Mrs. Padilla-Barham is the registered owner of the vehicle, she stated that the vehicle effectively belongs to her daughter, Natasha Barham. Natasha Barham has been its primary user for years; Mrs. Padilla-Barham drives a Volvo and her husband a Ford pickup truck. Upon Ms. Barham’s graduation, she was promised the car and she agreed that she would assume the payments when she became financially able. To date, Mrs. Padilla-Barham continues to make monthly payments, as Ms. Barham has only recently commenced steady employment. Petitioner contends that Natasha Barham is the beneficial owner of the car. According to her mother, Ms. Barham has been the car’s primary user for a number of years. Mrs. Padilla- Barham did not indicate that she or her husband had used the car since it was given to their daughter. Although she is not yet making payments on the car, Ms. Barham is its intended and eventual owner. In her affidavit, Ms. Barham states that the car is hers, that she uses it for work, and that her mother has been helping her pay for it until she is “on [her] feet” (Resp. Ex. A). She pays for the car’s maintenance. I find these facts sufficient to infer her beneficial ownership. 4 Beneficial ownership or a possessory interest in a vehicle may be established by dominion and control over the vehicle. See Vergari v. Kraisky, 120 A.D.2d 739, 502 N.Y.S.2d 788 (2d Dep't 1986). Several factors have been used to evaluate whether someone is the beneficial owner of a vehicle: the name on the documents related to ownership, the person who bears the expense for the vehicle or for the insurance, the primary user of the vehicle, how consistently the person uses the vehicle, and how many vehicles the person owns. See Police Dep't v. Washington, OATH Index No. 1525/07, mem. dec. (Mar. 30, 2007) (son was beneficial owner who exercised “dominion and control” over seized car by using it regularly and predictably, even though mother purchased car and used it periodically but primarily used another car); Police Dep’t v. Walker-Richards, OATH Index No. 2020/06, mem. dec. (June 30, 2006) (finding driver, the brother of the registered owner, was not beneficial owner where his sister “often” let him use the car because there was no evidence he paid for the vehicle’s upkeep or that his sister was not the primary user); Police Dep't v. Torres, OATH Index No. 1412/06, mem. dec. (Mar. 31, 2006) (finding nephew was not beneficial owner of aunt’s vehicle where his name did not appear on any ownership documents, he made no payments on the vehicle, aunt was the primary user and the vehicle was her primary mode of transportation); Police Dep't v. Bacon, OATH Index No. 551/06, mem. dec. (Oct. 19, 2005) (finding that driver was the beneficial owner of vehicle, rather than his girlfriend who was the titled owner, because he made the car payments). Although she does not hold title and is not the registered owner, Ms. Barham is the intended and eventual owner and she exercises dominion and control over the vehicle, permitting others such as her boyfriend to use it. See Police Dep’t v. Murray, OATH Index No. 1144/06, mem. dec. (Jan. 31, 2006) (finding son was beneficial owner where he shared title to vehicle with his mother, the seized vehicle was his primary means of transportation, the mother owned two other vehicles and testified she regularly drove one of them to work); Police Dep't v. Bloise, OATH Index No. 2138/04, mem. dec. (June 17, 2004) (finding son was beneficial owner where, although respondent/father was the registered and titled owner of the vehicle, the car had been modified for the son’s use in high speed, performance driving). Petitioner also argued that Mr. Appling is the “joint” beneficial owner with Ms. Barham because of his unlimited access to the car and shared residence with Ms. Barham. The basis for 5 the premise that there is a status constituting joint beneficial ownership is unclear. Nevertheless, even if it existed, I disagree that Mr. Appling qualifies. The record established that Mr. Appling and Ms. Barham moved into the family home in November 2007 to allow them to save money as they searched for employment. According to respondent’s testimony and her daughter’s affidavit (Resp. Ex. A), Mr. Appling was permitted use of the car by Ms. Barham, and he sometimes drove her to work and picked her up. He was allowed use of the car the day before his arrest to investigate enrolling in educational courses. Petitioner’s advocate pointed out that Mr. Appling recently took the car for maintenance and used Ms. Barham’s credit card to pay for it, signing his own name on the credit card receipt (Resp. Ex. A). Other than the above testimony, there was no other evidence that quantified Mr. Appling’s use of the Barham vehicle. Mr. Appling made no car payments and is not its intended owner. Thus, I find that the evidence Mr. Appling’s use of the Barham vehicle is insufficient to create an inference of beneficial ownership. See Police Dep't v. Harding, OATH Index No. 1703/07, mem. dec. (Apr. 16, 2007) (son who attended college in another state and used family car when he returned home during periodic college breaks was not a beneficial owner); Police Dep’t v. Arroyo, OATH Index No. 2016/06, mem. dec. (June 30, 2006) (son permitted use of his father’s car when his father periodically drove to New York to visit him was not a beneficial owner). While Ms. Barham is the beneficial owner, petitioner failed to establish that she is not an innocent owner, which is its burden. The relevant evidence on this point is as follows. Mr. Appling has been Ms. Barham’s boyfriend for three years, and she gave him permission to use the car on the night of his arrest (Resp. Ex. A). According to the New York State repository inquiry report, Mr. Appling has not been arrested or convicted of a crime before this incident (Pet. Ex. 5). The rule regarding “innocent” owners arises from the Administrative Code provision that prohibits claimant-owners who use property to commit a crime “or permit or suffer the same to be used” for unlawful activity from reclaiming such property. Admin. Code § 14-140(e); see also Krimstock, 306 F.3d at 48, n.9. A court will hold an owner liable for having permitted or suffered a certain activity if that owner “knew, or should have known, that the activity would take place.” Pagano, 170 A.D.2d at 35, 573 N.Y.S.2d at 661. The purpose of the rule is to punish wrongdoers, not innocent parties. 6 To charge Ms. Barham with the “implied knowledge” that her boyfriend could have committed these acts, there must be evidence that she knew that he had committed criminal acts involving a vehicle in the past. See Pagano, 170 A.D.2d at 36, 573 N.Y.S.2d at 661 (innocent owner prevailed where court found a lack of evidence that the driver had previously engaged in criminal behavior involving a vehicle, despite driver’s history of noncriminal traffic violations). Mr. Appling has no previous criminal history, thus there is no evidence that Ms. Barham had implied knowledge that he might commit such acts. Moreover, there was no other evidence that Ms. Barham knew or should have known that he would use her car for illegal activity. See Police Dep't v. Green, OATH Index No. 126/06, mem. dec. (July 14, 2005) (Department produced no evidence that driver had committed past criminal acts with a vehicle or that owner had knowledge of any such acts). The same is true of Mrs. Padilla-Barham. The fact that Mr. Appling was no longer welcome in their home after his arrest and no longer lives there, according to respondent’s testimony, implies that the family is not willing to tolerate his illegal conduct. Accordingly, I find Ms. Barham is the innocent beneficial owner of the seized vehicle. Therefore, the Department is unable to prove the second prong of the Krimstock test.

ORDER The Department failed to satisfy its burden of proof under the Krimstock Order and is not entitled to retain the vehicle pending the forfeiture action.

Tynia D. Richard Administrative Law Judge

January 8, 2008

APPEARANCES:

SGT. LAWRENCE V. SISTA, ESQ. Attorney for Petitioner

NYDIA PADILLA-BARHAM, ESQ. Respondent pro se